Will James Clapper Be Prosecuted for Lying to Congress?

When the James Clapper, Director of National Intelligence, was asked under oath at a Senate Intelligence Committee meeting in March of this year: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?, he answered “No, sir.”  

Astonished by the response, Oregon Democrat Senator Ron Wyden sought clarification: “It does not?” Clapper replied: “Not wittingly. There are cases where they could, inadvertently perhaps, collect–but not wittingly.”

Yet documents recently leaked by former NSA analyst and America’s number one fugitive, Edward Snowden, demonstrate Clapper likely gave false testimony to Congress. Clapper has since admitted he testified in the “least untruthful manner’ he could think of” and he was “too cute by half.”  

But there is little chance he will be prosecuted. 

After Snowden’s revelations over the last three weeks, outraged media on both the left and right have demanded that Clapper be immediately fired and prosecuted for perjury. 

On Thursday, a bipartisan group of 26 Senators, including Senator Wyden wrote a letter asking to James Clapper for “clarification” in his testimony to understand if the Obama Administration is relying on a “secret body of law” to collect massive amounts of data on US citizens.  The letter also complained that administration witnesses made misleading statements and demanded the Director answer a series of specific questions on the scale and legal justification for domestic surveillance. Although the letter screams potential prosecution, Congress seldom punishes liars with criminal indictments.    

Last October, Attorney General Eric Holder appeared to lie, knowingly and willfully, when he told the House of Representative’s Oversight Committee that he did not know exactly when he first learned of the “Fast and Furious” gun-walking program–and again when he recently testified to the House Judiciary Committee he never targeted journalists in leak investigations.  

Former IRS Director Douglas H. Shulman also appears to have misled a number of Congressional committees when he testified that there had been no targeting by the IRS against political organizations for 501(c)(4) tax exempt status. 

Before anyone can be charged with criminal lying, the Congressional committee involved must formally vote to refer the matter to the United States Attorney for the District of Columbia for prosecution for perjury, obstruction of justice and false statements.  But these charges require the following findings:

(a.) The General Perjury Statute (18 USC 1621) elements of the crime: “A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” Each of these elements must be proven beyond a reasonable doubt, which can be extremely challenging.

(b.) The General Obstruction Statute (18 USC 1505) defined “corruptly” as: “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”  Proving a defendant’s state of mind when lying was “intentional and improper,” is legally very difficult.

(c) The General False Statement Statute (18 USC 1001), makes a crime to “knowingly and willfully” (1) falsify, conceal, or cover up by any trick, scheme, or device, a material fact; or (2) make any materially false, fictitious, or fraudulent statement or representation; or (3) make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.  The challenge is to prove the defendant acted “knowingly and willfully“, plus prove statements false.

Since there have only been six people convicted for lying to Congress since the 1940s, very few criminal referrals are ever made by Congress. The most recent case was prosecution of Major League Baseball Hall of Fame pitcher Roger Clemens for supposedly lying to Congress about taking performance-enhancing drugs in 2008.  Clemens pleaded not guilty to the charges. But prosecutorial misconduct led to a mistrial and he was acquitted in a second trial on all six counts of lying to Congress.

Clapper’s public admission that he was not completely truthful to Congress may reduce the prosecutorial “burden” to prove “falsity and state of mind.” 

But given Edward Snowden’s exposures that Senate leaders also hid aspects of the NSA programs from the American public, it is unlikely there will be any criminal referral of Clapper. 

With his public reputation in tatters, James Clapper will probably retire on a pension paid ye taxpayers, and then make big bucks working for a Washington, D.C. “beltway bandit” to sell over-priced consulting to the U.S. military-intelligence-complex.